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AIRCO SPEER CARBON AND LIBERTY MUTUAL INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (10/25/78)

decided: October 25, 1978.

AIRCO SPEER CARBON AND LIBERTY MUTUAL INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MERLE W. MERTZ, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Merle W. Mertz v. Airco Speer Carbon and Commonwealth of Pennsylvania, No. A-72175.

COUNSEL

Scott E. Becker, with him Thomas J. Ferris, for petitioners.

R. Edward Ferraro, with him David P. King, and James N. Diefenderfer, for respondents.

Judges Wilkinson, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 38 Pa. Commw. Page 275]

This is an appeal from a decision of the Workmen's Compensation Appeal Board (Board) awarding benefits to the respondent Merle W. Mertz (claimant) under the provisions of Section 108(k) of The

[ 38 Pa. Commw. Page 276]

Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of October 17, 1972, P.L. 930, as amended, 77 P.S. ยง 27.1(k). For reasons that are more fully set forth below, we remand this case to the Board for further proceedings.

Claimant last worked for petitioner on August 24, 1973, having been employed at the same plant for a period of over 30 years. This plant was utilized for the purpose of manufacturing carbon electrodes. Claimant's duties included loading and weighing mixes of various materials used in making these carbon electrodes. The materials with which claimant worked included coke dust, graphite, pitch and sand. The claimant testified at great length concerning the extremely dusty conditions which prevailed throughout the plant, and as to his exposure to this dust. The claimant further testified that the institution by petitioner of various means of eliminating the dust (by use of dust collectors), and of cutting down the employees' exposure to that dust (by the use of masks and hoods), did little to alleviate the dusty conditions.

As indicated above, claimant last worked for petitioner on August 24, 1973, at which time he stopped working due to heart trouble. On or about February of 1974, claimant filed an application for a disability pension with petitioner. At that time, claimant's physician indicated that claimant was totally and permanently disabled as a result of hypertensive and arteriosclerotic heart disease with diabetes mellitus. On December 24, 1974, claimant filed the claim petition presently under consideration. The record indicates that claimant had been told by his physician in June of 1973 that he was totally disabled due to his breathing difficulties, and that the claimant so informed the plant superintendent at that time. As the facts outlined above indicate, however, claimant continued

[ 38 Pa. Commw. Page 277]

    to work for over two months after he was allegedly totally disabled. The referee found that claimant was totally disabled as of November 18, 1975, which is also the date of a report from the claimant's physician. This report was introduced into evidence at the referee's hearing, and essentially acknowledged that claimant suffered from heart trouble. The report concluded, however, that the heart trouble had been alleviated by surgery, and that if it were not for pneumoconiosis arising from prolonged exposure to dust, the claimant would have been able to go back to work.

Petitioner's primary contention is that there is not substantial competent evidence to prove that claimant was exposed to a silica hazard either prior or subsequent to June 30, 1973. In addition, petitioner contends there is a lack of competent evidence to demonstrate that claimant even suffers from silicosis, or that there is a causal relationship between the claimant's pneumoconiosis and his ...


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